Newsletter of the Assistive Technology Advocay Project
A Project of Neighborhood Legal Services, Inc · 295 Main Street, Room 495 · Buffalo NY 14203
(716) 847-0650 · (716) 847-0227 FAX · (716) 847-1322TDD atproject@nls.org · www.nls.org
Supported by NYS Office of Advocate for Persons with Disabilities,TRAID Project, a Project
Funded by The National Institute on Disability and Rehabilitation Research, U.S. Department of Education.
Opinions expressed herein are not necessarily those of either TRAID or NIDRR

In This Issue...
VESID and the Commission for the Blind
Basic Eligibility Criteria
The Individidualized Plan for Employment
Available Services
Financial Need Criteria
Maximization of Employment
Comparable Services Requirement
Appeal and Hearing Rights
Client Assistance Program
Law and Policy Governing VESID and CBVH
Medicaid Buy-In; a Reality for 2003
Benefits Planning Assistance & Outreach Centers in New York

INTRODUCTION

        Two New York agencies provide vocational rehabilitation (VR) services. The Commission for the Blind and Visually Handicapped (CBVH) serves persons who are legally blind. The Office of Vocational and Educational Services for Individuals with Disabilities (VESID) serves all others. VESID and CBVH can fund a wide range of goods and services that are connected to a person's vocational goal. Both agencies can play a critical role in assisting persons with disabilities to enter the work force and can be an important funding source for assistive technology (AT).

        The delivery of services by VESID and CBVH is governed by Title I of the federal Rehabilitation Act and by regulations of the federal Rehabilitation Services Administration. Since our first VR newsletter in March 1996, there have been many changes to the federal law and regulations. Title I of the federal Rehabilitation Act was amended in 1998 and the federal regulations were amended in January 2001 to conform with the 1998 amendments. These federal changes have also resulted in conforming amendments to state regulations and policy.

        This article reviews VESID and CBVH eligibility criteria, discusses specific goods and services that can be funded, describes appeal procedures, and the availability of advocacy services through the Client Assistance Programs. Since the federal law and regulations govern both agencies, the basic legal requirements discussed below will have their basis in federal mandates. For a more comprehensive analysis of the federally regulated VR system, see Funding of Assistive Technology: State Vocational Rehabilitation Agencies and Their Obligation to Maximize Employment, a 28-page booklet published by the National AT Advocacy Project and available on the Neighborhood Legal Services website at www.nls.org/vrbooklt.htm. We hope to update this booklet during the upcoming year.

BASIC ELIGIBILITY CRITERIA

        A person seeking services from either VESID or CBVH must file an application. Since both VESID and CBVH are state agencies, you will find the address and phone number for their nearest office in the government section of your phone book or on the agencies' websites (see box, p. 212).
To be eligible for services from either agency, an individual must be disabled and require VR services "to prepare for, secure, retain or regain employment." Therefore, any service must be connected to an ultimate a vocational goal. Persons who receive Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) benefits automatically meet the disability criteria. All others must show a mental, physical or learning disability (or, in the case of CBVH, legal blindness) that interferes with the ability to work.

        A vocational goal is defined as full or part-time employment in an integrated setting, including self employment, telecommuting, business ownership, supported employment, and homemaking, that is consistent with the individual's strengths, abilities, interests and informed choice. Changes to the federal regulations in 2001 eliminated sheltered workshop (or what is also referred to as extended employment) as a final employment outcome.
However, consistent with the principle of informed consumer choice, extended employment remains a viable alternative. First, extended employment continues to be a VR service as an interim step toward achieving integrated employment. Second, for those choosing extended employment as a long term option, it remains available "outside the VR program." In such cases, VESID or CBVH must inform the consumer that extended employment can be provided to prepare for employment in an integrated setting and that they may later return for VR services to prepare for integrated employment. Additionally, the VR program must refer SSI and SSDI beneficiaries seeking long term extended employment to the Social Security Administration (SSA) for information about available work incentives.
The purpose of the referral to SSA is to ensure that consumers are "informed of recent reforms that are designed to reduce a key work disincentive by enabling individuals with disabilities to work and continue receiving Social Security benefits." The federal Rehabilitation Services Administration believes "the need for this critical information, and its potential effect on an individual's interest in pursuing integrated work in the community, justifies" this requirement. In this way, individuals will be able to "make truly informed choices among the wide scope of employment options-both integrated and non-integrated-available to persons with disabilities." Comments to 2001 regulations, 66 Federal Register (Fed. Reg.) 7257.

        A person is presumed capable of employment despite the severity of a disability unless VESID or CBVH shows by clear and convincing evidence that he or she cannot benefit from VR services. However, the disability need not be so severe as to qualify the person for SSDI or SSI. The disability must only be a substantial impediment to employment.

        Prior to concluding inability to benefit from services, VESID or CBVH must explore work potential through a variety of trial work experiences, with appropriate supports. These trial experiences must "be of sufficient variety and over a sufficient length of time to determine" whether the individual is eligible (i.e., able to benefit from VR services). Individuals determined to be incapable of benefitting under this standard must be referred to local extended employment providers (i.e., sheltered workshops).

        With limited exceptions, both VESID and CBVH must determine eligibility within a reasonable time, not to exceed 60 days, after the individual submits an application. Information used to determine eligibility includes: existing data, such as medical reports, Social Security records and education records; and to the extent existing data is insufficient, an assessment done by or obtained by the VR agency.

THE INDIVIDUALIZED PLAN FOR EMPLOYMENT

        After VESID or CBVH establishes eligibility, a counselor is assigned and an Individualized Plan for Employment (IPE) is developed. This was formerly called an Individual Written Rehabilitation Program (IWRP). To arrive at an IPE the individual may be evaluated to identify skills, abilities and interests which will help in determining possible employment goals. The individual may need a physical and/or psychological examination to determine how his or her disability impacts on the ability to obtain or maintain employment. The evaluation may also include a referral for the provision of rehabilitation technology (i.e., AT) services, "to assess and develop the capacities of the individual to perform in a work environment."

Informed Consumer Choice

        VESID and CBVH must ensure that all services are implemented consistent with the principles of "respect for individual dignity, personal responsibility, self determination, and pursuit of meaningful careers, based on informed choice, of individuals with disabilities." They must assist individuals in their exercise of informed choice throughout the VR process, including the assessment, selection of an employment outcome, the specific services to be provided, the entity which will provide the services, the method for procuring services, and the setting in which the services will be provided. The VR agency must approve the IPE, but the individual decides the level of involvement, if any, of the VR counselor in developing it. The reason for this expanded role for the consumer was Congress' belief "that a consumer-driven program is most effective in getting people jobs." Congressional Record-House, H6693, July 29, 1998.

Developing the IPE

        All services to meet the employment goal must be specified on the IPE. It must include:

• The specific employment outcome, chosen by the individual, consistent with the individual's unique abilities and interests;
• The specific VR services to be provided, in the most integrated setting appropriate, including AT and personal assistance services, as appropriate;
• The timeline for starting services and achieving the employment outcome;
• The specific entity, chosen by the individual, to provide services;
• The criteria for evaluating progress;
• The responsibilities of the VR agency, the individual and any other agencies;
• For individuals with the most significant disabilities that are expected to need supported employment, the extended services to be provided; and
• The projected need for post employment services.

        The IPE must be reviewed at least annually and, if necessary, amended if there are changes in the employment outcome, the services to be provided, or the service providers. Any changes will not take effect until agreed to by the individual and the counselor.

        Before the VR agency can close a case, the individual would have to achieve the employment objective in the IPE and maintain it for no less than 90 days. Also, the individual and VR counselor must agree that the employment outcome is satisfactory and the individual is "performing well." Prior to closing a case, the individual must also be informed of the availability of post-employment services.

AVAILABLE SERVICES

        Any services necessary to assist an individual with a disability in "preparing for, securing, retaining, or regaining an employment outcome" may be covered. The VR agency is to ensure that all necessary services are provided. The agency cannot choose to provide only some services to save costs. In fact, the "severity of an individual's disability or the cost of services can have no bearing on the scope of services the individual receives." 66 Fed. Reg. 4426.

        The services available from VESID and CBVH are incredibly broad and AT is frequently referred to as an available service. Available services must include, but are not limited to, the following:

• The assessment to determine eligibility and needs, including, if appropriate, by someone skilled in rehabilitation technology;
• Counseling, guidance and job placement services and, if appropriate, referrals to the services of other providers of employment services;
• Vocational and other training, including higher education and the purchase of tools, materials and books;
• Diagnosis and treatment of physical or mental impairments to reduce or eliminate impediments to employment, to the extent not funded by other sources;
• Maintenance for additional costs incurred during rehabilitation;
• Transportation, including adequate training, provided in connection with any other service and needed to achieve an employment outcome. (Although VESID's policy precludes the purchase or lease of vehicles, the federal regulations provide that transportation services may include vehicle lease or purchase. 34 C.F.R. § 361.5(b)(57)(i), Ex.2.);
• Personal assistance services while receiving VR services;
• Interpreter services, readers, rehabilitation teaching, and orientation and mobility services;
• Occupational licenses, tools, equipment, initial stocks and supplies;
• Technical assistance for those pursuing telecommuting, self-employment or small business operation;
• Rehabilitation technology, including vehicular modification, telecommunications, sensory, and other technological aids and devices;
• Transition services for students with disabilities;
• Supported employment;
• Services to the family to assist an individual with a disability to achieve an employment outcome;
• Other goods and services necessary to achieve an employment outcome;
• Post-employment services which are necessary for the individual "to maintain, regain or advance in employment."

        VESID and CBVH may establish reasonable time limits for providing services, but they must not be so short as to effectively deny a service and they must "permit exceptions so individual needs can be addressed." Similarly, VESID and CBVH policies on payment rates must not be so low as to effectively deny an individual a necessary service and may not be absolute. Finally, the policies must ensure timely authorization of services, "including any conditions under which verbal authorization can be given."

FINANCIAL NEED CRITERIA

        There is no application fee for either VESID or CBVH. Likewise, there is no charge for the services of a VR counselor or for services provided to determine eligibility including medical, vocational or other evaluations. Once eligible, some services will be contingent on "financial need," considering the applicant's income and resources including, in some cases, those of a parent or spouse. Recipients of SSDI, SSI or public assistance benefits are eligible for all VR services regardless of income and resources. Former SSI cash beneficiaries, who continue to receive Medicaid under section 1619(b), are also eligible for all VR services regardless of income and resources.

        Under federal regulations, a VR agency is permitted to have a financial needs test which must take into account the individual's disability-related expenses. The agency is also permitted to establish a level of participation (or cost sharing) which must not be so high as to "effectively deny the individual a necessary service." Both VESID and CBVH have a financial needs test, but neither has instituted a cost sharing requirement at this time. The following services must be provided without regard to financial need: diagnostic services; counseling, guidance and referral services; job placement; personal assistance services; and "any auxiliary aid or service," such as interpreter or reader services, that the individual needs to participate in the VR program and which would be mandated under section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act (ADA). VESID adds special transportation for the severely disabled to this list.

MAXIMIZATION OF EMPLOYMENT
Statutory Requirements

        The requirement that VR services are to maximize employment was first added to the federal law in 1986. The legislative history emphasized Congressional intent:

[T]he overall purpose of the Act is to develop and implement comprehensive and coordinated programs of rehabilitation for handicapped individuals which will maximize their employability, independence and integration into the work place and the community ... designed to meet the broad range of needs of individuals with handicaps in becoming integrated into the community and in reaching their highest level of achievement. S. Rep. No. 388, 99th Cong., 2d Sess. 5 (1986)(emphasis added), as quoted in Polkabla v. Commission for the Blind, 183 A.D.2d 575, 576, 583 N.Y.S.2d 464, 465 (N.Y. App. Div.1st Dept. 1992).

        As currently stated, the purpose of the federal Rehabilitation Act is to:

[E]mpower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society, through ... comprehensive and coordinated state-of-the-art programs of [VR]. 29 U.S.C.  701(b)(1)(A)(emphasis added).

        This language was added in 1992. It strengthens the 1986 standard, as it requires the VR agency to maximize an individual's economic self-sufficiency. Presumably, this means that if an individual has the requisite ability, and has the option of either obtaining a bachelor's degree and becoming a paralegal or going to law school to become an attorney, the VR agency should approve the goal of becoming an attorney, because the attorney position would more likely "maximize economic self-sufficiency."

RSA Policy Directive

        Consistent with the increased statutory obligations placed on VR agencies, in 1997, the Rehabilitation Services Administration (RSA) issued a Policy Directive, RSA-PD-97-04. It requires VR agencies to approve vocational goals and services to enable persons with disabilities to maximize their employment potential. It represented a dramatic shift in RSA policy which is best expressed in the following quote:

The guidance provided through this Policy Directive is intended to correct the misperception that achievement of an employment goal under Title I of the Act can be equated with becoming employed at any job. As indicated above, the State VR Services program is not intended solely to place individuals with disabilities in entry-level jobs, but rather to assist eligible individuals to obtain employment that is appropriate given their unique strengths, resources, priorities, concerns, abilities, and capabilities. The extent to which State units should assist eligible individuals to advance in their careers through the provision of VR services depends upon whether the individual has achieved employment that is consistent with this standard (emphasis added).

        This directive clarifies that cost or the extent of VR services an individual may need should not be considered in identifying the goal in the IPE. The directive also clarifies that a person who is currently employed will, in appropriate cases, be eligible for VR services to allow for "career advancement" or "upward mobility."
It emphasizes that the VR agency must still determine whether the individual's career choice is consistent with his or her vocational aptitude. In an effort to meet these requirements, however, VR agencies are encouraged to make these determinations through a comprehensive assessment (such as a trial placement in a real work setting) or by establishing short-term objectives in the IPE (such as a trial semester in college).
The comments to the 2001 federal regulations reaffirm this policy. They note that states must "look beyond options in entry-level employment for VR program participants who are capable of more challenging work." Additionally, "individuals with disabilities who are currently employed should be able to advance in their careers." 66 Fed. Reg. 4419.

COMPARABLE SERVICES REQUIREMENT

        State VR agencies are considered the payor of last resort for many services. This means they will not pay for a service if a similar or comparable benefit is available, at no cost, through another provider. For example, if an applicant qualifies for personal assistance services through Medicaid, the VR agency will not provide them. But, the VR agency cannot deny payment for college tuition because an individual could obtain student loans. Loans, which must be repaid, are not similar benefits. Comparable benefits do not include awards and scholarships based on merit. The comments to the 2001 federal regulations also make it clear that SSI's Plan for Achieving Self-Support (PASS) is not a comparable benefit. 66 Fed. Reg. 4419.

        Additionally, diagnostic services, counseling, referral services, job placement, and rehabilitation technology (i.e., AT) are totally exempt from the comparable benefit requirement. A person does not have to exhaust similar benefits if it would interrupt or delay: progress toward achieving the employment outcome; an immediate job placement; or services to an individual at extreme medical risk. Although AT is technically not subject to this requirement, we often encourage individuals to first seek Medicaid funding for items typically funded by Medicaid, such as wheelchairs or augmentative and alternative communication devices.
The IPE must list all services to be provided to meet the employment goal, whether or not they are the VR agency's responsibility. It must identify the services the VR agency is responsible for providing, any comparable benefits the individual must apply for or secure, and the responsibilities of any agencies to provide comparable benefits. If another agency refuses to fulfill its obligations, VESID or CBVH must provide the services, but may seek reimbursement from that agency. Therefore, if another agency refuses to provide a service within its area of responsibility, the individual does not have to wait until that dispute is resolved before obtaining the service.

APPEAL AND HEARING RIGHTS

        Anyone seeking or receiving VR services who is dissatisfied with a decision by the VR agency has a right to appeal. A VESID decision may be appealed within 90 days of receiving the written decision. A CBVH decision may be appealed within 60 days. The VR agency's procedures must include the right to mediation and an administrative hearing before an impartial hearing officer. VESID and CBVH must notify individuals, in writing, of their appeal rights and the availability of the Client Assistance Program (CAP) at the following times: at the application; when the IPE is developed; and upon the reduction, suspension or cessation of VR services.

        Mediation must be offered, at a minimum, whenever an impartial hearing is requested. However, in each case, participation must be voluntary for both the individual and the state. In addition, involvement in mediation cannot be used to deny or delay the right to a hearing. The state bears the costs of mediation. All discussions that occur during mediation are confidential and cannot be used at any subsequent hearing.

        In addition to mediation, three types of appeal are available: an informal conference with the individual's counselor and the counselor's senior counselor; a formal administrative review with the district manager; and an administrative hearing. Disputes are often resolved in an informal conference or administrative review. If not resolved informally, the individual is entitled to a hearing before an impartial administrative law judge (ALJ). A written request for a conference or administrative review is also considered a request for a hearing. The hearing must be scheduled within 45 days after it is requested. The individual must be notified of the hearing date no later than 14 days before the hearing.

        The individual has the right to be represented at the hearing by an attorney or other advocate. Both the individual and the agency can present evidence and cross examine witnesses. The ALJ will send copies of his or her decision to the individual, his or her representative if there was one, the district manager, and the agency Director in Albany.

        Either party may appeal the final decision in state or federal court. An individual dissatisfied with a final hearing decision should consult with an attorney as soon as possible because there are strict time limits for filing the court appeal. Based on similar rulings in the special education area, it is expected that this time frame will be four months. Pending review in court, the final administrative decision must be implemented.

CLIENT ASSISTANCE PROGRAM

        The CAP is funded under the federal Rehabilitation Act. It is designed to provide information to individuals concerning their rights in the VR process and to provide advocacy services in resolving disputes, including representation at fair hearings. Any time an individual does not understand the proposed IPE, rights under the Rehabilitation Act, or receives an adverse decision from the VR agency, he or she can contact the appropriate CAP office for assistance. CAP advocates are usually very effective at the informal conference or administrative review level. Should a fair hearing be necessary, CAP advocates are versed in the law and procedures necessary to conduct a hearing.

*  *  *  *  *  *  *

LAW & POLICY GOVERNING VESID AND CBVH

Federal:

• Federal Rehabilitation Act, 29 U.S.C. §§ 701 et seq.
• 34 C.F.R. Part 361

State:

VESID
web.nysed.gov/vesid

• NY Education Law §§ 1001-1009
• 8 N.Y.C.R.R. Part 247
• VESID Policy Manual, available online at www.vesid.nysed.gov/policies/CBVH

CBVH
www.ocfs.state.ny.us/main/cbvh/default.htm

• NY Social Services Law § 38
• NY Unconsolidated Laws Chapter 261
• 18 N.Y.C.R.R. Parts 725, 726, 727
• CBVH Handbook, available online at www.ocfs.state.ny.us/main/cbvh/cbvh401.htm

MEDICAID BUY-IN: A REALITY FOR 2003?

New Program for Working Disabled Part of 2002 Health Reform Package

        As this newsletter was going to press, the state Senate, Assembly, and Governor Pataki reached an agreement on a comprehensive health reform package that includes authorization for the long-awaited Medicaid buy-in program. This optional Medicaid program was first authorized by Congress in 1997 and amended as part of the Ticket to Work and Work Incentives Improvement Act of 1999. It is aimed at those individuals with severe disabilities who are heavily dependent on Medicaid and would lose that coverage if they went to work for substantial wages.
        Those who would typically benefit most from the buy-in are Social Security Disability Insurance beneficiaries who, upon working for substantial wages, would either lose Medicaid outright or face a very high “spend down” in order to keep Medicaid. (SSI beneficiaries who lose cash benefits as their wages increase can retain Medicaid under the 1619(b) program. See Summer 2000 issue of IMPACT for information on retaining Medicaid under 1619(b).) Although preliminary details are sketchy, it would appear, for example, that an SSDI beneficiary who is single could earn up to $44,000 per year and retain Medicaid by paying a $100 per month premium.
        Other details of the Medicaid buy-in, scheduled to take effect in April 2003, will appear in a future issue of IMPACT when they become available.

FINAL "TICKET" REGULATIONS PUBLISHED
To be implemented in New York Starting in February

        The Ticket to Work and Self Sufficiency is a long-awaited program authorized by the Ticket to Work and Work Incentives Improvement Act of 1999. Its purpose is to provide individuals with disabilities additional choices for obtaining vocational services, through a variety of public and private agencies that will be known as employment networks (ENs). A second purpose of the program is to ensure better employment outcomes by making the payments to ENs dependent on successful employment. To that end, the vast majority of EN payments will occur only for those months in which the consumer's wages make him or her ineligible for SSI and SSDI payments.

        A comprehensive article discussing the Ticket program will appear in the Spring 2002 issue of The Benefits Planner, the quarterly newsletter of the New York State Work Incentives Support Center (WISC), a collaborative project of Cornell University and Neighborhood Legal Services of Buffalo. That
newsletter should be available on our website by late February (at www;nls.org/tocplant:htm) and will be available in a print format in both English and Spanish. For more information about the Ticket or to be added to either our print or email mailing list for The Benefits Planner, call the State WISC's statewide technical assistance line (toll-free) at 1-888-224-3272. Benefits specialists are available to answer a range of questions regarding the SSI and SSDI work incentives, Medicaid, Medicare and the Ticket Program and are available to take calls from persons who speak only Spanish.

The AT Advocacy Project will provide statewide services: including limited advocacy services and technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.

Welcome to Neighborhood Legal Services’ data bank!

        Do you have decisions of interest relating to assistive technology in the following areas? Medicaid, Medicare, Vocational Rehab, VA, Special Education, Physically Handicapped Children’s Program, Private Insurance, etc.

        Other advocates can benefit from your experience. If you have fair hearing decisions or are involved in or have completed litigation in these areas, we want to know about it.

Funding of Assistive Technology Through our State's Vocational Rehabilitation Agencies

New Programs to Help Persons with Disabilities Going to Work:

• The Ticket to Work and Self Sufficiency
• The Medicaid Buy-In
• Extended Medicare Coverage .

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